Powers to call for By-Election

The current situation at Perak raises interesting legal issues on Election Commission powers. The 2 State Assemblymen have denied they have resigned but the Speaker of the Assembly have concluded that they have. Now the EC has decided that the 2 Assemblymen did not resign and refuse to call for election. Can the EC do that?

Under Section 5 of the Election Act 1958, the provision which relates specifically to the General Powers of the Election Commision states:-

(a) exercise control and supervision over the conduct of elections and the registration of electors on the electoral rolls, and shall enforce on the part of all election officers fairness, impartiality and compliance with Part VIII of the Constitution and this Act and any regulations made thereunder;

(b) have powers to issue to election officers such directions as may be deemed necessary by the Commission to ensure effective execution of Part VIII of the Constitution and this Act and any regulations made thereunder;

(c) have power to administer any oath required to be taken under this Act and any regulations made thereunder; and

(d) execute and perform all other powers and duties which are conferred or imposed upon it by this Act and any regulations made thereunder.

The Perak State's Constitution seems to suggest that the EC has a power to decide if a Member of the State Assembly has resigned or otherwise. But the Election Act above clearly states the general power of the Commission with respect to elections.

See link for discussion on this:

http://harismibrahim.wordpress.com/2009/02/04/what-does-the-perak-state-constitution-say-and-what-ought-the-ec-to-have-done/

It would be interesting to see if this matter is litigated, to decide if EC has any adjudicative power to decide, or are they merely a Body to accept the notification from the State Assembly Speaker and then proceed to an Election.